An easement gives a person the right to use a neighbour’s land without actual possession. A common example of a ‘private’ easement is a right of way to pass through a neighbour’s property to get to your own. An example of a ‘statutory’ easement is an ‘easement for services’ such as electricity. Easements are usually but not always registered on the title to the property.
Easements can be classified in a number of ways. For example, the right to enter the property of another owner is a positive easement. A negative easement might prohibit the building of a structure in a particular way.
Perhaps counter-intuitively, the property conceding the right is known as the servient tenant. The property that benefits from the right over someone else’s property is known as the dominant tenement.
Many of these aspects feature in the following illustrated case.
Case in focus: Au v Berlach (2022)
This recent case involved a dispute between neighbours over the use of leaf blowers, 17 CCTV cameras and an easement. It was a case that, as the presiding judge put it, grew ‘out of all proportion’.
The Berlach and Au families are neighbours in Matcham, a semi-rural suburb of NSW’s Central Coast Region between Sydney and Newcastle. The Berlach’s property is at the rear of the Au property and their property is ‘completely landlocked’ other than for a right of way or easement over the Au property. This gives the Berlach family their only way to access the main road. The use of this right became a matter of bitter dispute that found its way as far as the NSW Supreme Court.
Dr Au sought orders that the Berlachs were not entitled to carry out routine maintenance using leaf blowers on the easement, could not park there and were not to interfere with the boundaries with the plants or anything else except for the services of a professional gardener up to twice a week.
The Berlachs countered this with a cross-claim. They sought orders designed to stop the Au’s interference with their rights under the easement, including the removal of certain signage, the CCTV cameras and fencing. Dr Au had set up an elaborate surveillance system designed to check on the activities of the Berlachs, and he and his wife spent hours reviewing the results.
The Court declined to make any of the declarations or injunctions sought by Dr Au because it considered that to do so would not be reflective of the terms of the registered easement. The Court accepted that the evidence of the Berlachs as to the distress caused by the presence of the CCTV cameras along with the sign ‘Smile-you are being recorded’. The Court did, however, accept that for security reasons some cameras could remain.
In essence, the end result was the Berlachs were successful in their counter-claim, and the Aus failed in their costly claim.
What does it mean?
Disputes can arise especially when the easement favours, or is perceived to favour, one landowner over the other. However, the illustrated case draws out several lessons of how best to approach the situation:
Understand the rights and obligations in the easement
Where there are easement disputes, it is essential that the parties are clear on each other’s rights and obligations. When discussing matters such as a shared driveway, it is important to understand that not all easements are the same. Established easements are not always fleshed out in every detail. A right of way that is drawn widely will permit reasonable repair and maintenance including, for example, the pruning of vegetation and allowing for some stopping or parking of vehicles.
Reflect on the legal advice received
Neighbours that are affected by an easement and are in disagreement over it need to seek and take note of the legal advice they are given. Dr Au seemed to have a faulty understanding of the issues despite the advice he received. As the judge commented, the ‘origin of the present dispute is Dr Au’s extraordinarily restrictive view of the rights conferred on the Berlachs by the easement’. It seems he did not take on board the advice he had been given, and mediation attempts were also unsuccessful.
The propensity for cross-claims
The case demonstrates that parties should be aware of potential counterclaims that can be brought against them when they bring an action in Court.
Invasion of privacy v nuisance as a ‘cause of action’
Aggrieved ‘burdened’ owners, like the Aus, have been known to resort to other tactics than just aggressive signage and excessive CCTV surveillance. If these actions are considered disproportionate compared to their neighbour’s legitimate security needs, they will be viewed as an ‘invasion of privacy’.
However, there is no common law right to privacy in Australia, and the illustrated case has helped to clarify the law in that the cause of action was identified as a nuisance. The Court found that the distress caused to the Berlachs from the excessive use of CCTV cameras was a ‘substantial and unreasonable interference of their enjoyment of the easement so that the cause of action in nuisance is made out. That said, merely installing some surveillance cameras by the land owner will not, or is unlikely, to be regarded as a nuisance.
The need for a sensible approach
Court action will settle a matter legally, but it cannot of itself heal good neighbourly relations. As the judge commented, there is a need to exercise a degree of give-and-take, tolerance and common sense. An aggrieved and uncooperative neighbour is not beneficial to the value of a home in all senses. Respective landowners should exercise their rights so as not to unreasonably interfere with each other’s rights.
At Szabo & Associates Solicitors, we believe in taking a pragmatic approach to property disputes and finding the way that is likely to deliver the desired result for our clients in the shortest timeframe possible.
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